Karnataka High Court
Kiran Vittaldas Gajakosh vs The State Of Karnataka And Ors on 22 August, 2024
Author: K Natarajan
Bench: K Natarajan
-1-
NC: 2024:KHC-K:6194
CRL.P No. 200540 of 2023
C/W CRL.A No. 200309 of 2023
CRL.P No. 200342 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL PETITION NO.200540 OF 2023
(482(Cr.PC)/528(BNSS))
C/W
CRIMINAL APPEAL NO.200309 OF 2023
CRIMINAL PETITION NO.200342 OF 2024
IN CRL.P.NO.200540/2023
BETWEEN:
1. GANGABAI KISHORE GAJAKOSH
W/O KISHORE GAJAKOSH,
AGED ABOUT 37 YEARS, OCC: HOUSEHOLD WORK,
Digitally signed 2. KISHORE GAJAKOSH S/O VITTAL,
by SHIVALEELA
DATTATRAYA @ VITTALADAS GAJAKOSH,
UDAGI AGED ABOUT 44 YEARS, OCC: LABOUR,
Location: High
Court Of
Karnataka 3. ROHINI KISHORE GAJAKOSH
D/O KISHORE GAJAKOSH,
AGED ABOUT 17 YEARS, OCC: STUDENT,
THE PETITIONERS ARE R/O AFZALPUR TAKKE,
VIJAYAPURA TALUK VIJAYAPURA DISTRICT-586102.
...PETITIONERS
(BY SRI. BANGARI SUNILKUMAR PARAMESHWAR, ADVOCATE)
AND:
-2-
NC: 2024:KHC-K:6194
CRL.P No. 200540 of 2023
C/W CRL.A No. 200309 of 2023
CRL.P No. 200342 of 2024
1. THE STATE OF KARNATAKA
BY VIJAYAPURA RURAL POLICE STATION,
VIJAYAPURA-586101
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA
KALABURAGI-585103.
2. GOURAKKA URF GOURABAI SHIVAYYA MATHAPATI
W/O SHIVAYYA MATHAPATI,
AGED ABOUT 68 YEARS, OCC: HOUSEWIFE,
R/O WARD NO.04, AFZALPUR TAKKE,
VIJAYAPURA TALUK,
VIJAYAPURA DISTRICT-586102.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP FOR R1;
SRI. RAJESH G. DODDAMANI, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE FIR AND COMPLAINT IN
CRIME NO.397 OF 2022 BY THE VIJAYAPURA RURAL POLICE
STATION, VIJAYAPURA FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 323, 354, 504, 506 READ WITH SECTION 34
INDIAN PENAL CODE IN THE INTEREST OF JUSTICE.
IN CRL.A. NO.200309 OF 2023 (U/S 14A(2))
BETWEEN:
SRI. KIRAN VITTALDAS GAJAKOSH
S/O VITTAL @ VITTALDAS GAJAKOSH,
AGED ABOUT 34 YEARS, OCC: GOVERNMENT
SERVICE, RESIDENT OF AFAZALAPUR TAKKE,
VIJAYAPURA TALUK,
VIJAYAPURA DISTRICT-586102
NOW AT SHRINIVASPUR,
DIST.KOLHAR (KGF)
...APPELLANT
(BY SRI. BANGARI SUNILKUMAR PARAMESHWAR, ADVOCATE)
-3-
NC: 2024:KHC-K:6194
CRL.P No. 200540 of 2023
C/W CRL.A No. 200309 of 2023
CRL.P No. 200342 of 2024
AND:
1. THE STATE OF KARNATAKA
BY VIJAYPAURA RURAL POLICE STATION,
VIJAYAPURA-586101.
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALABURAGI-585103.
2. SIDRAMAYYA S/O SHIVAYYA MATHAPATI,
AGED ABOUT 38 YEARS, OCC: COOLIE,
3. GOURAVVA W/O SHIVAYYA MATHAPATI,
AGED ABOUT 60 YEARS, OCC: HOUSEHOLD WORK,
4. BASAYYA S/O SHIVAYYA MATHAPATI,
AGED ABOUT 40 YEARS, OCC: PRIVATE SERVICE,
THE R2 TO R4 ARE RESIDENT OF WARD NO. 4
AFZALPUR TAKKE, VIJAYAPURA TALUK
VIJAYAPURA DISTRICT-586102.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP FOR R1;
SRI. SHARANAGOUDA V. PATIL, ADVOCATE R2 AND R4;
R-3 SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14-A
(2) OF SC/ST (PA) ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER PASSED BY THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND SPECIAL JUDGE, VIJAYAPURA IN
CRL. MISC. NO. 814 OF 2023 DATED 14.06.2023 AND THEREBY
CANCEL THE BAIL GRANTED UNDER SECTION 439 OF CODE OF
CRIMINAL PROCEDURE IN CRIME NO. 170/2023 REGISTERED
BY VIJAYAPUR RURAL POLICE STATION FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 114, 324, 307, 504 AND READ
WITH SECTION 34 OF INDIAN PENAL CODE AND UNDER
SECTION 3(1)(R)(S) (2) (VA) OF SC AND ST (PREVENTION OF
ATROCITY) NEW ACT-2015 .
IN CRL. P. NO. 200342 OF 2024
(482(CR.PC)/528(BNSS))
BETWEEN:
-4-
NC: 2024:KHC-K:6194
CRL.P No. 200540 of 2023
C/W CRL.A No. 200309 of 2023
CRL.P No. 200342 of 2024
1. VITTHALDAS GAJAKOSH
S/O CHANDRAKANTH GAJAKOSH,
AGE: 65 YEARS, OCC: RETD.,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH
TQ. AND DIST. VIJAYAPURA
2. GANGABAI GAJAKOSH W/O KISHOR GAJAKOSH,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH
TQ. AND DIST. VIJAYAPURA
3. KISHOR GAJAKOSH S/O VITTHAL DAS GAJAKOSH,
AGE: 42 YEARS, OCC: ---
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA.
4. ROHINI GAJAKOSH D/O KISHOR GAJAKOSH,
AGE: 39 YEARS, OCC: STUDENT,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA
5. KIRAN GAJAKOSH S/O VITTHAL DAS GAJAKOSH,
AGE: 44 YEARS, OCC: GOVT. TEACHER,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA.
6. ARJUN GAJAKOSH S/O VITTHAL DAS,
AGE: 36 YEARS, OCC: BANK MANAGER,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ, AND DIST. VIJAYAPURA.
7. RAJESAB HEBBAL S/O KASIMSAB,
AGE: 50 YEARS, OCC: DRIVER,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
-5-
NC: 2024:KHC-K:6194
CRL.P No. 200540 of 2023
C/W CRL.A No. 200309 of 2023
CRL.P No. 200342 of 2024
TQ. AND DIST. VIJAYAPURA.
8. RUKUJAN HEBBAL W/O RAJESAB
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA
9. DANAMMA RATHOD W/O RATAN SINGH,
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA.
10. AMBARISH RATHOD S/O RATAN SINGH,
AGE: 33 YEARS, OCC: KOLI,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA.
11. LAKKAWWA BIDARI W/O LAXMAN,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA.
12. VITTHAL BIDAR S/O LAXMAN,
AGE: 42 YEARS, OCC: KOLI,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA.
...PETITIONERS
(BY SMT. LAKSHMI G.E., ADVOCATE)
AND:
1. BASAYYA S/O SHIVAYY MATHPATI,
AGE: 39 YEARS, OCC: PRIVATE WORK,
R/O AFZALPUR TAKKE COLONY,
AFZAL KHAN MASJID NORTH,
TQ. AND DIST. VIJAYAPURA-586101.
...RESPONDENT
(BY SRI. SHARANAGOUDA V. PATIL, ADVOCATE)
-6-
NC: 2024:KHC-K:6194
CRL.P No. 200540 of 2023
C/W CRL.A No. 200309 of 2023
CRL.P No. 200342 of 2024
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO ALLOW THIS PETITION AND THEREBY
QUASH THE COMPLAINT IN PCR NO. 428/2023 NOW C. C. NO.
936/2024 FOR OFFENCE PUNISHABLE UNDER SECTIONS 323,
324, 420, 504, 506 READ WITH 34 OF IPC PENDING ON THE
FILE OF IV ADDL. CIVIL JUDGE AND JMFC VIJAYAPURA
THESE PETITIONS, COMING ON FOR ADMISSION THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR. JUSTICE K NATARAJAN) Crl.P.No.200540/2023 is filed by the accused Nos.1 to 3 under Section 482 of Cr.P.C. for quashing the criminal proceedings and investigation in Crime No.397/2022 dated 26.12.2022 registered by Vijayapura Rural Police Station, Vijayapura for the offences punishable under Section 323, 354, 504, 506 read with Section 34 of IPC.
2. Crl.A.No.200309/2023 is filed by the appellant/defacto-complainant under Section 14A(2) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities)Act, 1989(herein after referred to as the Special Act) at for canceling the bail granted by the 2nd Addl. -7-
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 District and Sessions Judge, Vijayapura in Crime No.170/2023 for the offence punishable under Sections 114, 324, 307, 504 read with Section 34 of IPC and Sections 3(1)(r)(s), (2)(va) of the Special Act.
3. Crl.P.No.200342/2024 is filed by the accused persons under Section 482 of Cr.P.C. for quashing the private complaint in CC No.936/2024 arising out of PC No.428/2023 for having taken cognizance against the petitioners herein for offences punishable under Sections 323, 324, 420, 504, 506 read with Section 34 of IPC.
4. Heard the arguments of learned counsel for the appellants in all three cases and learned counsel for the respondent Sri.Rajesh Doddamani, in Crl.P.No.200540/2023, Sri.Sharanagouda V Patil, in Crl.A.No.200309/2023 and learned High Court Government Pleader for the State.
5. The case of the prosecution in Crl.P.No.200540/2023 arising out of Crime No.397/2022 is that a complaint was filed by respondent No.2/Gourakka Urf Gourabhai on 26.12.2022 alleging that the accused -8- NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 persons i.e., the petitioners were residing infront of their house. The said accused persons used throw the garbage infront of their house and there was a quarrel between them. On 18.12.2022 at about 3:00 p.m., the accused No.1 threw the garbage infront of their house and when the complainant object to the same, the accused No.1 abused her in filthy language, assaulted her with hands and threatened to do away with her life and other accused persons outraged her modesty. After receiving the complaint, the police registered FIR in Crime No.397/2022 for the offences punishable under Sections 323, 354, 504, 506 read with Section 34 of IPC. Being aggrieved by the same, the petitioners are before this Court.
6. Learned counsel for the petitioners contended that the petitioner No.1 filed a complaint against respondent No.2 and her family members, which was registered in Crime No.396/2022 for the offences punishable under Sections 323, 354, 504, 506 read with Section 34 of IPC and Section 3(1)(r)(s), (2)(va) of the Special Act alleging assault and injury. After two days of -9- NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 filing the complaint, complaint in Crime No.397/2022 has been filed as a counterblast. Therefore, there is a delay in lodging the complaint, which is a counterblast complaint to overcome the complaint filed by the petitioner. Therefore, the FIR has be quashed.
7. Per contra, learned counsel for the respondent No.2 has contended that there is a delay in lodging the complaint by the petitioner in Crime No.396/2022, where the alleged incident occurred on 18.12.2022. But, there was a delay of 6 days in filing the complaint and of course, there is another 2 days delay in filing the complaint by the respondent No.2. When there is a case and counter case registered by the parties and the incident has been admitted, the FIR cannot be quashed. Both the cases should be tried and the judgment shall be delivered by the same Court. Hence, prays to dismiss the petition.
8. Learned High Court Government Pleader has also adopted the same submission.
9. Crl.A.No.200309/2023 is filed by the injured/complainant in Crime No.170/2023 for canceling
- 10 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 the bail granted by the II Addl. District and Session Judge and Special Judge, Vijayapura in Crl.Misc.No.814/2023. A complaint came to be filed, when the complainant was admitted in the hospital. The police received MLC and registered FIR in Crime No.170/2023, where it is stated by him that he was working as a Head Master in Kolar and he came to house warming ceremony of his sister Kaveri. There the accused person's motorcycle is said to have been obstructing the road. Therefore, he removed the motorcycle of the accused. At that time, accused Nos.1 to 3 said to have come there and picked up a quarrel abusing them in filthy language by taking his caste name. He abused stating that how come a lower caste person touched his motorcycle. Then, accused No.1 said to have brought Machete and gave it to accused No.3. In turn, accused No.3 took the Machete and tried to assault on the neck of the complainant with an intention to commit murder. But, when the complainant tried to prevent the same, he got injuries on the palm. Then, the accused persons all assaulted together and caused injuries.
- 11 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 Therefore, the injured was shifted to the hospital. The police received the MLC and his statement was recorded and the FIR in Crime No.170/2023 was registered for the offences punishable under Sections 114, 324, 504, 506 read with Section 34 of IPC and Section 3(1)(r)(s), (2)(va) of the Special Act. The accused persons were arrested and they were remanded to judicial custody. They approached the Sessions Court for grant of regular bail in Crl.Misc.No.814/2023, which was allowed vide order dated 14.06.2023. Being aggrieved by the same, the present appeal is filed to cancel the bail order.
10. Learned counsel for the appellant contends that there is a clear case of attempt to commit murder in the complaint. Even though, there was a complaint filed against the respondent in Crime No.396/2022, in order to threaten the witnesses, respondent No.2 has also filed a private complaint before the Magistrate for various offences including Section 420 of IPC. He also contended that there were serious injuries sustained by the petitioner. He has produced the photographs of the
- 12 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 injuries sustained by the complainant, which prima facie shows that the accused have violated the earlier bail conditions. Therefore, if they are on bail, they will tamper the witnesses and commit similar offences. Hence, prays for canceling the bail.
11. Per contra, learned counsel for the respondent Nos.2 to 4 has objected to the appeal, contending that there is no violation in the conditions of bail. They were arrested and remanded to judicial custody. The police are investigating the matter and the charge sheet is yet to be filed. It is case of case and counter case. Merely because an earlier case was registered and the conditions were violated, the bail cannot be rejected in this case. A counter case is also registered by the respondent, which is registered as 171/2022. Such being the case, question of canceling the bail does not arise at all. Hence, prays to dismiss the appeal.
12. The contention of learned counsel for the petitioners in Crl.P.No.200342/2024 filed by accused Nos.1 to 12 under Section 482 of Cr.P.C. for quashing the order
- 13 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 of taking cognizance in CC No.936/2024 arising out of PCR No.428/2023 pending on the file of 4th Addl. Civil Judge and JMFC, Vijayapura is that a false case has been registered by the respondent in the private complaint. No such incident has taken place. In order to threaten the witnesses, a complaint has been registered by Gourakka. A case and a counter case has been registered between the parties. A perusal of the order shows that the learned Magistrate has not applied his mind while taking cognizance for the offences punishable under Sections 324, 420, 323, 504, 506 read with Section 34 of IPC. If at all there was a violation of the orders passed by the Ombudsman, Arogya Souda, Bangalore, they could have filed an execution petition before the same Ombudsman. Even otherwise, the order passed by Ombudsman has been challenged before the court and it was stayed. Hence, absolutely there is no material for taking cognizance.
13. He also contended that before going to the Court by filing a private complaint, the respondent has not
- 14 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 approached the police under Section 154(1) of Cr.P.C. and Superintendent of Police under Section 154(3) of Cr.P.C. The guidelines issued by Hon'ble Supreme Court in the case of Priyanka Srivatsava and Another V/s State of Uttar Pradesh And Others reported in (2015) 6 SCC 287 are not followed. Therefore, the private complaint cannot be entertained. Even otherwise, the cognizance was taken without application of mind. There is no wound certificate also and other witnesses were not examined. Merely on the basis of the sworn statement, cognizance was taken on the private complaint. Hence, he prays to quash the private complaint.
14. Per contra, learned counsel for the respondent has objected the petition contending that there is no error in the order passed by the Magistrate in taking cognizance on the private complaint and issuing process for the alleged offences. Therefore, he prays to dismiss the petition.
- 15 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024
15. Heard the arguments of all the counsels in all three cases and Learned High Court Government Pleader for the State.
16. In Crl.P.No.200540/2023 it is alleged that the incident took place on 18.12.2022. Admittedly, the petitioners and the respondents reside in the houses opposite to each other. There was a quarrel between them, since the respondents used to throw garbage infront of the petitioner's house. During the quarrel, the respondent No.2 and her family members have assaulted the petitioners and her family. Therefore, the petitioner No.1 has filed a complaint under Section 323, 354, 504, 506 read with Section 34 of IPC including the Special Act, which was registered in Crime No.396/2022. However, there was a delay of 6 days in filing this complaint. Thereafter, on 26.12.2022, the complaint was lodged in Crime No.397/2022 by respondent No.2 against the petitioners, regarding the same incident. It is a clear case of case and counter case. The said incident took place on 18.12.2022. But, the complaints have been lodged on
- 16 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 24.12.2022 and 26.12.2022. In both the complaints the facts are one and the same and the incident is nothing but admitted one. Such being the case, both the case should be tried by the same Special Judge, one by one and pass the judgment on the same day. The Trial Court is required to verify, who is the aggressor for commission of offence and thereafter proceed to pass the judgment by convicting the offender. Therefore, Crime No.397/2022, which is the counter case of Crime No.396/2022 filed by the petitioner cannot be quashed. Accordingly, Crl.P.No.500540/2022 is liable to be dismissed.
17. As regard the Crl.A.No.200309/2023, the complainant came from Kolar District for attending house warming ceremony of his sister. He removed the motorcycle of the accused persons, which was obstructing the path. The accused persons picked up a quarrel and assaulted the complainant with Machete. The complainant sustained injuries in the said incident. The photographs of the injuries indicate that the complainant sustained injuries near the neck, on the body as well as on the palm.
- 17 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 It is alleged that the accused tried to assault on the neck and while preventing the same the complainant sustained the injury on the palm. Hence, Section 307 of IPC gets attracted. However, the reason for canceling the bail, it is contended that respondents/accused violated the conditions of the bail in Crime No.170/2023. Of course, if any condition imposed on bail granted in Crime No.170/2023 were violated, they could have filed an application for canceling the bail before the same Court, in which the bail was granted. But, in subsequent case the bail cannot be cancelled. Apart from that Kiran came from Kolar Dist on the date of incident and there was a case and counter case. Therefore, the Trial Court considered the material on record where the accused persons were granted bail in Crl.Misc.No.1901/2022 and Crl.Misc.No.1900/2022 on 11.01.2023. Considering the fact that there was a case and counter case, the bail granted cannot be cancelled. There is no violation of any of the bail conditions also. Therefore, the appeal for
- 18 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 cancellation of the bail cannot be entertained and is liable to be dismissed.
18. As regards Crl.P.No.200342/2022, in the private complaint it is alleged that the petitioner Vittaldas, is said to have abused the complainant in filthy language stating that he is suffering from HIV and he had instructed others, not to contact him and directed him to vacate the premises. He is said to be admitted in Arogya Soudha, Bangalore. Therefore, the respondent filed a complaint before the Ombudsman under HIV and AIDS (Prevention and Control) Act, 2017, where Ombudsman after hearing both sides passed an order on 28.03.2023 against this Vittaldas, directing him to do social service in the government hospital in Vijayapura. If he fails to attend to social service, he shall be imposed a fine of Rs.10,000/- on the first day and Rs.5,000/- on the subsequent days. It is alleged that the accused did not follow the order. He came inside the house along with other accused and assaulted the complainant and caused injury. They have approached the Superintendent of Police and when the police did not
- 19 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 take the complaint, they filed a private complaint. Learned Magistrate recorded the sworn statement examining PW-1 and got marked 2 documents. Thereafter, took cognizance of the offence and issued process for the alleged offences. A careful reading of the arguments addressed by the learned counsel for the petitioner and on perusal of the PCR, would go to show that there is absolutely no documents produced by the complainant before the Magistrate to show that he has approached the police under Section 154(1) of Cr.P.C. for filing complaint. If he was admitted in the hospital, the hospital authorities would have sent the MLC report to the police and the police could have recorded the statement and registered FIR. No such medical records or wound certificate produced were before the Court to show that they were assaulted with deadly weapons. That apart guidelines issued by the Hon'ble Supreme Court in the case of Priyanka Shrivatasava(Supra) were also not followed. The complainant should have approached the police under Section 154(1) of Cr.P.C., if there complaint was not
- 20 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 registered, he should have approached the Superintendent of Police under Section 154(3) of Cr.P.C., if the SP had not taken the complaint, then the complainant should have filed a private complaint under Section 200 of Cr.P.C. along with detailed affidavit mentioning the facts. In this case, a copy of the complaint filed before the SP is produced. But, there is no other document to show that the guidelines laid down by the Hon'ble Supreme Court are followed.
19. However, this private complaint if filed before the Magistrate, the Magistrate had the option to take cognizance and post this matter for sworn statement or to direct the police to enquire into the matter and submit a report under Section 202 of Cr.P.C. Thereafter, the Magistrate could have passed the order either under Section 203 Cr.P.C. by dismissing the complaint or issue process under Section 204 Cr.P.C. But, in the present case, the cognizance order was taken and the summons was issued on the same day i.e., on 24.01.2024. The statement was recorded earlier and without taking
- 21 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 cognizance, the case was posted for sworn statement. There is violation of procedure prescribed under Section 200 to 204 of Cr.P.C. Even otherwise, while passing the order under Section 204 of Cr.P.C., learned Magistrate blindly recorded the statement and the process was issued. There is nothing mentioned about sustaining injuries to attract Section 324 or cheating under Section 420 of Cr.P.C. Such being the case, there is a violation of procedure prescribed under Section 200 to 204 of Cr.P.C. In this regard this Court relies on the judgment passed by the coordinate Bench of this Court in the case of Dr. RaviKumar vs. Mrs. K. M. C. Vasantha and another, in Crl.P.No.536/2017 dated 27.11.2017. Para Nos.5, 6 and 7 of the said judgment reads as follows:
"5. The procedure followed by the learned Magistrate is not in accordance with law. It is well recognized principle of law that, once the police submit 'B' Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of 'B' Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-
- 22 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024
i) The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.P.C, but before taking cognizance such exercise has to be done. This my view is supported by the decisions of the Hon'ble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal (second head note.)
ii) If the court is of the opinion that the material available in the 'B' Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.
iv) After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide
- 23 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C.
v) If the court is of the opinion that the materials collected by the police in the report submitted under section 173 of Cr.p.c. are not so sufficient, however, there are sufficient materials which disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s under section 190 read with 200 Cr.p.c. on the basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the complainant/Protest Petition and contents therein, if the Magistrate is of the opinion that, to ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to post pone the issue of process he can still direct the investigation under section 202 of Cr.p.c., to be made by a Police officer or by such other officer as he thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under section 156(3) of Cr.p.c, once the magistrate takes cognizance and starts inquiring into the matter himself.
vi) After taking such report under section 202 of Cr.P.C., and looking to the entire materials on record, if the magistrate is of the opinion that there are no grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s.203 of Cr.P.C. as the case may be.
- 24 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024
vii) If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously, and issue summons to the accused by exercising power u/s.204 of Cr.P.C..
But, none of these procedures have been followed by the learned Magistrate. On the other hand, as could be seen from the records, the learned Magistrate even without rejecting the 'B' Summary report and without taking cognizance of the offences, but after going through the contents of the Protest Petition has directly provided opportunity to the complainant to give her sworn statement. On the basis of the contents of the Protest Petition, and after relying upon the contents of the Protest Petition and the sworn statement, the learned Magistrate has rejected the 'B' Summary Report which virtually amounts to putting the horse behind the Cart.
6. Of course, the contents of the Protest Petition before taking cognizance can only be used for a limited purpose of ascertaining whether the investigation done by the Police is proper and correct. Therefore, the learned Magistrate has committed a serious error in not passing any orders on the 'B' Summary Report before taking cognizance on the basis of the Protest Petition.
7. Issuance of summons to the accused will have a serious repercussion, i.e., calling upon a person to the Court is also a very serious act of the court. Therefore, the procedure contemplated as noted above has to be very scrupulously and meticulously followed by the court. The Magistrate has to explore all the options as noted above in accordance with law at right stages,
- 25 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 which has not been done in this particular case. The learned Magistrate has relied upon the contents of the Protest Petition and the sworn statement for the purpose of rejecting the 'B' Summary Report, which is not proper and correct. He has to pass orders on the 'B' Summary report before taking cognizance on the Protest Petition for the reasons already narrated in the earlier paragraphs of this judgment."
20. Though the police have filed B final report, learned Magistrate without taking cognizance recorded sworn statement and issued process. Coordinate Bench of this Court has categorically held that, where a private complaint is filed under Section 200 of Cr.P.C., the Court can take cognizance and post the matter for sworn statement. Thereafter, shall proceed to pass the order either under Section 203 of Cr.P.C. by dismissing the complaint or issuing process by summoning the accused persons under Section 204 of Cr.P.C.
21. On careful perusal of the order under challenge for taking cognizance and issuing process on the same day, without discussing the facts of the case and material available on record, I am of the opinion that order of
- 26 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 taking cognizance and issuing process needs to be quashed. Accordingly, this petition is liable to be allowed.
22. Accordingly, following order:
ORDER i. Crl.P.No.200540/2023 filed under Section 482 of Cr.P.C. is dismissed. ii. Crl.A.No.200309/2023 filed under Section 14A(2) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities)Act, 1989 is dismissed. iii. Crl.P.No.200342/2023 filed under Section 482 of Cr.P.C. is allowed. The complaint and cognizance taken by the learned Magistrate in CC No.936/2024 arising out of PCR No.428/2023 and the proceedings against the petitioners is quashed.
iv. The Special Court is directed to direct the police to file final report in Crime No.397/2022, 170/2023, 171/2023 and also in Crime No.396/2022. All the cases should be tried by the Special Judge, in accordance with law.
- 27 -
NC: 2024:KHC-K:6194 CRL.P No. 200540 of 2023 C/W CRL.A No. 200309 of 2023 CRL.P No. 200342 of 2024 Sri.Rajesh G Doddamani and Sri.Sharanagouda V Patil, who were appointed through High Court Legal Services Authority for respondents are to be paid an honorarium of Rs.5,000/- each.
Sd/-
(K NATARAJAN) JUDGE NJ List No.: 1 Sl No.: 27 CT:SI